by Dennis Cunningham, Michael Deutsch & Elizabeth Fink
PRISON LEGAL NEWS VOL. 22 NO.9 Sept 2011
This year, September 9 will mark the 40th anniversary of the rebellion at Attica State Prison in upstate New York. As one of the prisoner leaders, L.D. Barkley, announced to the world, the rebellion was “but the sound before the fury of those who are oppressed.”
The sound of Attica was heard loud and clear, but the fury at the time was reserved to the assault force: several hundred violently angry white state police officers and prison guards who carried out the massacre that ended the rebellion on September 13, 1971, with 43 men dead. The fury of the oppressed themselves has been a work in progress since that time.
L.D. was one of many politically aware prisoners in New York and elsewhere who identified with the struggle for liberation world-wide, with consciousness growing out of the civil rights movement, the urban uprisings of the 60s, and the ideology and practices of Malcolm X and the Black Panther Party. This consciousness was given voice in the writings of George Jackson and Eldridge Cleaver, especially Soledad Brother and Soul on Ice, whose searing indictments of injustice, racism and cruelty in California prisons echoed across the country and inspired resistance.
A manifesto demanding reform had come out of California’s Folsom Prison in 1970 and made its way around the country and into Attica, and the prisoners there had delivered a manifesto of their own to New York state authorities, which was ignored, several months before the rebellion. George Jackson was assassinated at San Quentin on August 21, 1971; a few days later the prisoners at Attica staged a surprise protest at breakfast, during which nobody ate and nobody talked. The guards were stunned and unnerved at the unanimity of the protest action.
A number of the prisoners had been involved in previous, smaller rebellions at the Tombs jail in New York City and the state prison at Auburn. Various chapters of political groups on the outside had formed inside, including the Black Panther Party and the Puerto Rican Young Lords, and the Black Muslims had a large organized contingent at Attica as well as in all other New York state prisons at that time. Political literature flowed freely, and the groups were often able to gather in the exercise yards and at various work sites and other locales in the institution. Grievances against the guards, the administration and the system were many and widely shared, especially on the part of the Black and Latino prisoners who came mainly from New York City, and almost all the rest from other big city environments like Buffalo, Syracuse and Rochester.
The entire staff at Attica at the time was white except for one Puerto Rican guard who worked in a watchtower and had no contact with prisoners. The surrounding rural area of Western New York where the guards came from was mostly what some call “up South,” to denote the level of racial antipathy and outright bigotry endemic in the local population, and thus in the prison work force.
At the same time there was a strong and growing belief among the prisoners that they had clear-cut rights under the Constitution that guaranteed fair and decent treatment, as well as freedom from discrimination; that despite years of peaceful petition and advocacy, their rights were largely ignored by the prison administration; and that much of the abuse and brutality they experienced from the white guards was a matter of official policy. Many prisoners had come to feel that something must be done.
* * *
The morning of September 9, 1971, a Thursday, after rumors that two prisoners had been beaten when taken to the hole the night before, a fight broke out between a handful of prisoners and guards in a hallway when a door that prisoners used to go to the yard after breakfast was locked. A large number of other prisoners soon filled the corridor and managed to break open a gate to the central connecting point between the cellblocks, known as “Times Square,” leaving large sections of the prison open and hundreds of prisoners loose inside the institution.
Staff members began to retreat to the administration building, but many were taken hostage by groups of prisoners and finally brought together in one of the four open exercise yards, D-Yard, inside the square of huge, three-story cell blocks that formed the main prison, where hundreds of prisoners now congregated. There it was quickly established that the hostages – both guards and civilians – would be cared for decently and protected at all costs, and the large, disciplined Nation of Islam contingent took responsibility for guarding them in a protected circle in the middle of the yard while other prisoners gathered in the far corner.
The prisoners quickly began to organize themselves into groups and to form a representative council to talk things over and decide things. There were roughly 1,280 prisoners in the yard. Several injured staff members were carried on litters to a distant gate, beyond a “no-man’s-land” zone where there had been rioting, so the authorities could get them to a hospital. Thirty-nine guards and civilian employees remained in the hostage circle. The prisoners began to assemble a list of specific demands and listened to speeches from each other about the grievances they all shared. They soon had a make-shift society set up to provide protection, food, water and shelter for the hostages, distribute rations and water, and keep order among themselves.
The prisoner leadership formulated and announced an initial list of 28 demands. Leading points included replacement of two notoriously vicious and incompetent prison doctors, and better medical care generally; an end to prison censorship and slave wages; and fairness in the parole process. The leadership put out a call for independent observers to come to the prison to intercede for them, and to bear witness to the merits of their grievances and the good faith of their desire to negotiate a peaceful settlement.
They asked that the nation’s leading civil rights advocate of the day, William Kunstler, come to the prison to act as their attorney. They named other prominent citizens who were concerned with prisons or prisoners in some way, including State Assemblyman Arthur O. Eve, perhaps the only public figure in the state of New York who had previously expressed concern about the conditions and treatment of prisoners at Attica; New York Times columnist Tom Wicker, who had written about problems in the prisons; New York State Senator John Dunne, head of the Senate Committee which supposedly oversaw the administration of the prison system; publisher Clarence Jones of the Amsterdam News; Congressman Herman Badillo, and many others on a list that grew and grew. Most of them came; as many as 50 were at the prison at various times during the five days of the rebellion. Kunstler arrived and went inside to raucous welcoming cheers from the eager, charged-up crowd of prisoners – his new clients.
The authorities first planned to go in immediately with state police forces that were being assembled, plus prison guards, to recapture the yard; instead, and to his short-lived credit, the state Corrections Commissioner, Russell Oswald, came from Albany to negotiate.
With several members of the press and TV cameramen in attendance, Oswald and his assistant, Walter Dunbar, went into the yard and sat down with a council of prisoners to talk about their demands. Oswald agreed to several demands and promised to study others, discuss them outside and return. The spectacle of prisoners controlling part of the prison and publicly negotiating for humane treatment with the Commissioner of Corrections captured the attention of the American public.
When Oswald left Attica, however, apparently not realizing that the prisoners would see him on television, he denounced them for refusing to release the hostages immediately.
They saw him on TV, and saw and heard that he had betrayed their trust. The observers committee went inside and another day passed in discussion of grievances, remedies and terms. A new set of three demands emerged as the prisoners’ terms for ending the standoff: 1) that the Warden, Vincent Mancusi, be replaced; 2) that prisoners who wanted to would be removed and deported to “a non-imperialist country”; and 3) that there would be amnesty from prosecution for all prisoners involved in the rebellion for any crimes committed during the riot. Needless to say, this was much tougher to negotiate. Oswald did not come back inside the yard after he was denounced; he met with the observers but held out little hope of compromise.
Over the weekend, a guard who had been hit in the head in the early stages of the uprising, when the big gate broke and prisoners surged into Times Square, died from his injuries. Now, hypothetically at least, everyone in the riot was responsible under the felony-murder rule, where the felony was the riot. Thus amnesty became the primary issue. The guards and state police, waiting outside the prison day after day, full of hostility and bombarded by false rumors, were now seething, and the observers felt a massacre would take place if a settlement was not reached.
They urged Governor Nelson Rockefeller to come to the prison and meet with them, to give assurances against mass prosecution, and particularly to see the state of high emotion of the police and prison officers, who were spoiling for an attack. Several urged that the Governor replace the officers with National Guard troops, who were ready and much more prepared to carry out a re-taking of the prison, but he refused. He did issue an order for the prison guards to stay out of the assault force, though it was ignored.
Governor Rockefeller declined to come. He told the observers that he felt it would do no good, that there was an impasse, and that he had no choice but to order an armed assault on the yard to rescue the hostages and put down the rebellion. He was convinced to wait at least until the next day, so that people at home on Sunday would not see the retaking of the prison on TV and start riots of their own.
After three days of fitful negotiations, during which the hostages were safely guarded by the Muslim prisoners, and the prisoner negotiators, aided by the outside observers, attempted to reach a resolution that would ensure meaningful changes as well as amnesty from reprisals and prosecutions, Governor Rockefeller moved to retake the D-Yard by force. Tom Wicker, Sen. Dunne, Congressman Badillo and Clarence Jones, who had been friends with Rockefeller for years, all warned him urgently—based on their harrowing passage each day through the masses of heavily-armed, white prison guards and state police waiting just outside the walls, their racist rage fueled by false rumors of atrocities by prisoners—that an attack would result in a “bloodbath.” Conventional wisdom and plain common sense dictated waiting until the prisoners tired of holding out so that some compromise for peaceable surrender could be arranged, but the Governor ordered the state police to prepare to attack.
Rockefeller still harbored presidential aspirations and obviously did not want to appear soft on prisoners, or on law and order generally; it was an opportunity for him to make political hay and he seized it. His only, wholly self-serving, “concession” was to postpone the assault from Sunday to Monday morning. As Congressman Badillo lamented bitterly afterwards, “What was the hurry? There’s always time to die.”
* * *
That Sunday it rained all night; by morning D-Yard was a sea of mud and everyone was soaked, cold and miserable. Commissioner Oswald made one last demand for surrender over the P.A. system. Some prisoners took several of the hostages onto the “catwalk,” the one-story roof over the long corridors which divided the interior yards, crossing at Times Square. The hostages stood spaced out on two sides, blindfolded, each guarded by a prisoner holding some apparent stabbing implement at their neck.
Then a National Guard helicopter flew low over the yard and some prisoners believed it was Governor Rockefeller, come at last. Instead it blew a huge cloud of military-grade CS gas into the mass of men; Oswald and the police commanders were told by General O’Hara, the National Guard commander, that the CS would “put them on the ground” to defeat resistance, and it did. Within seconds every one of the 1,300 men in the yard was face down in the mud, gasping for breath. Then the shooting started.
Marksmen on high roofs opposite D-Yard quickly shot everyone on the catwalk—killing two of the hostage shields and several of their “executioner” escorts—as helmeted squads broke over and through the barricades the prisoners had built on the far catwalks. One shield hostage, Attica guard Michael Smith, shot four times in the gut by the attack force, said his life was saved when the prisoner holding him, Donald Noble, put his own body in the way of the shooting to protect him. Smith said he never understood why his own people kept shooting at him, or in truth, why the assault was necessary at all. He had appeared on a TV broadcast the day before in which several hostages had urged Rockefeller to come to the prison to settle things peacefully, another plea the Governor spurned.1
As the squads came out on the catwalks above D-Yard, several with long guns took up positions along the length of the roofs and began shooting into the mass of men huddled in the mud, clearly oblivious to the presence of the hostages in the middle of the yard, several more of whom died in that barrage. The “turkey shoot” lasted some fifteen minutes from when the snipers opened fire to when the supposed covering fire ended, and squads of guards and state police swarmed down ladders into the yard. More than two thousand rounds were fired, many of them dum-dum bullets.
One hundred eighty-nine of the 1,300-odd men in the yard were hit. The body count after the massacre was 39 dead – 29 prisoners and 10 hostages, including those on the catwalk – by rifle and shotgun fire. Other prisoners and hostages were maimed for life due to the denial and delay of medical care. Many who died had been left to bleed to death, lying in the mud. No records were kept of which officers fired which weapons, and they made a point of mixing them up afterwards and then bulldozed all the evidence into a dirt pile in back of the prison so the killers could not be traced.
White revolutionary Sam Melville, the alleged “Manhattan bomber,” was murdered in cold blood with his hands in the air in surrender by State Police Detective Vincent Tobia, who hurried along the catwalk, stopped, aimed down and fired a shotgun into Melville’s chest from 15-20 feet away—and later testified proudly that he had done so. The firebrand and prisoner spokesman L.D. Barkley was also killed, with credible evidence that he was seen alive after the retaking of the prison but later executed. The issue was never resolved.
Some three dozen ambulances had been mustered outside, but they were reserved for the hostages whether or not they were injured. No medical care had been planned for the prisoners, and the National Guard was forced to step in without advance preparations or adequate supplies. More than an hour after the shooting stopped, Warden Mancusi called Dr. Worthington Schenk, the head of emergency services at Meyer Memorial Hospital, the big hospital in Buffalo, and told him they had a problem and he should come out. With no idea of the massacre he was about to encounter, Schenk and two residents drove the 45 miles to Attica. Only when he got there did he see the horror, and then he called back to Buffalo for emergency medical services. Meanwhile at least six prisoners had died needlessly while scores lay in agony for hours waiting for medical care.2
After the shooting stopped, the officers on the ladders were joined by many more coming through the tunnels, as a state police helicopter circled overhead with a loudspeaker booming repeatedly, “Surrender to an officer. You will not be harmed.” The officers quickly began clubbing the gasping, unresisting prisoners to their feet, including many who were wounded, and driving them across the yard to a doorway in one of the tunnels, across the tunnel and out the door opposite into the adjacent A-Yard on the other side.
They had to go up five or six steps to the door, across the tunnel, then back down. Inside and out they were met with more officers who beat them and tore their clothes off, took away glasses, watches, false teeth, etc., then herded them naked in a long snaking line that wound slowly through the yard leading into the other tunnel next to A-Yard—which led into the A Cellblock, its cells now emptied—where a gauntlet awaited them. Those who were considered leaders, the prisoner negotiators, spokesmen and security men, were singled out for prolonged abuse.
As the prisoners waited in the long line, which many people have seen in lurid photographs that have became hallmarks of that day, listening to the cries of those who preceded them into the tunnel, and the shouts and curses of the officers who lined the tunnel with rifles and axe handles, beating them, another preliminary torment was also inflicted upon them. There was one prisoner everyone knew as Big Black (Frank Smith), a leader during the days in the yard, chosen as the overall chief of security and head of the escort squad that protected Oswald and Dunbar, and then the observers, when they moved in and out of the prison.
Mostly a smalltime hustler from the streets of Brooklyn, Big Black had been in Attica for several years—basically due to rotten lawyering and conflict of interest whereby he received a sentence three or four times longer than he should have—but he had not become involved in any of the political activities or groups which had developed in the prison, except as audience. A large dark-skinned man, very direct but with a ready, friendly smile, he coached the cellblock football team, worked in the laundry and was on good terms with everyone; everyone respected him, even the police. But they changed their attitude during the five days of the rebellion as he stayed at the center of things, directing the security force and turning up repeatedly at the gate where the visitors came and went.
Now, as the smoke cleared and the huddled men started struggling up, officers came through the crowd shouting for “Big Black! Where’s Big Black?” They found him, beat him and stripped him, then took him across into A-Yard. There they laid him on a steel table near the door where the curving line of prisoners fed into the gauntlet, with the middle of the back of his head at one edge lengthwise and the other end reaching to mid-thigh. They beat him some more, especially in the groin and testicles, cursing him loudly and stubbing out cigarettes on his body. Officers above him on the catwalk would hold empty shell casings in the flame of a lighter until they were too hot, then drop them on his body. They put a football under his chin and made him hold it against his chest, telling him that if it fell he would be castrated or shot. They left him there for others to see, keeping the torment up for more than five hours as the line slowly snaked past him into the tunnel.
Inside the tunnel the floor was strewn with broken glass for some 50 yards, to the A Cellblock gate, and both sides were lined with officers with ax handles, 2x4s, baseball bats and rifle butts. The naked prisoners had to run, or, when they were tripped or knocked down, stumble and crawl the length of the tunnel, while being struck and jabbed repeatedly over the whole distance by violently freaked-out, cursing, sworn peace officers of the State of New York, all white men. Inside the cellblock they were herded up the stairs and into cells—four or five men stuffed into single cells, including many who needed medical attention. There they remained, naked, ill fed and often terrorized throughout the night by officers who came in with flashlights and threatened to shoot them, frequently cocking and dry-firing rifles, shotguns and pistols at them, and promising more death and mayhem to come, for the next 3 to 5 days.
Big Black was finally removed from the table at about four in the afternoon—after around five hours—and taken to the hospital outside the main building. There he was put in a small room with several guards armed with clubs, who resumed beating and kicking him until a National Guard medical officer happened to open the door and find him, and that was the end of it. Twenty years later he broke down weeping on the witness stand while describing that day during a class-action civil rights trial—despite having told the story many times—when the memory hit him full force. He was the first of several witnesses who broke down and cried at the trial.
Afterwards, a news photographer found and recorded a pair of inscriptions, in separate hands, written with a white marker on a dark steel wall that succinctly told the story of the Attica rebellion. The top one said, “Attica fell 9-9-71 – Fuck you pig!” Just underneath that was written, “Retaken 9-13-71. 31 Dead Niggers.”
* * *
State officials falsely announced to the world that the dead hostages had been killed by prisoners who slit their throats and emasculated one of them, which they said they had seen and left them “no choice” but to attack. When autopsies revealed that the slain hostages had died from gunshot wounds from the lawmen’s weapons, state officials denounced local pathologist John Edland as a communist and tried to discredit his findings. As Mark Twain said, “A lie can travel halfway round the world while the truth is putting on its shoes.” Three years later, when the Erie County population in and around Buffalo was polled in preparation for jury selection during the first criminal trials, it was found that fully a third of the public still incorrectly believed that the dead Attica hostages had been murdered by prisoners.
The truth could not be suppressed, however, and the massacre – one of the two or three largest slaughters of Americans by other Americans since the Civil War3 – was acknowledged in an official investigation, the McKay Commission Report. There had been no plan to rescue the hostages; they were simply sacrificed at the altar of race hate and in aid of Rockefeller’s political ambitions. The Second Circuit Court of Appeals denounced the so-called “re-housing” of prisoners after Attica was retaken as “an orgy of brutality.”
To add insult to the grave injury, many of the surviving victims of the massacre and torture at Attica were later indicted by a local grand jury made up of friends and neighbors of the prison guards and run by a Rockefeller intimate, Robert E. Fischer, a former judge who was appointed as a special attorney general. A large task force of lawyers and ex-state police officers, acting as investigators, looked into alleged crimes by the prisoners and studiously ignored those of the police and state officials. A later investigation uncovered the intentional killing of unarmed prisoners by the state assault force, but that investigation was suppressed and—with the exception of one hapless trooper who was indicted for “reckless endangerment” for discharging his shotgun twelve times to “keep up the noise,” as he put it—no charges were filed against the police.
Sixty-two prisoners were indicted in December 1972 and charged with over 1,200 felony counts in total, more than half of which carried a life sentence upon conviction. Lawyers and activists from all over the United States came to Western New York to defend them.
Attica Brothers Legal Defense (ABLD) was born, combining the legal defense with public education, fundraising and investigation of the crimes committed by state actors, and justice for the Attica Brothers became a nationwide political issue.
The main demand was to drop the criminal charges, plus jail Rockefeller and the police killers. Hundreds of people demonstrated in Buffalo where the trials were to be held; thousands participated in one great march in September 1974, when the first frame-up trials were about to start. Many of those who came to work for ABLD, including the authors of this article, had their lives dramatically changed by the Brothers’ example of militancy and courage, and by the reality of how far the state was willing to go to suppress the rights and righteous protest of prisoners. In all, five trials (involving eight Attica Brothers) were held, resulting in four acquittals and one conviction.
A national political campaign was initiated under the leadership of Big Black, whose experiences at Attica had transformed him into a committed activist. Dozens of lawyers and young people volunteered, organized and demonstrated, forcing official investigations which exposed the planning and cover-up of the killings and torture. In late 1974 a young lawyer on the special prosecutor’s staff, Malcolm Bell, quit in disgust after his efforts to develop cases against abusive officers were repeatedly blocked by higher-ups. He went to the New York Times with his story and soon a major exposé appeared on the paper’s front page, telling the world what everyone involved in the case already knew: that the special investigation was a one-sided fraud.
An investigation into the investigation was launched and, ultimately, a new governor, Hugh Carey, was pressured to give amnesty to the indicted Attica Brothers and clemency for two who had already been convicted, calling the Attica prosecutions the “darkest day in the history of New York jurisprudence.” Twenty years and tens of thousands of work hours later, despite the concerted efforts of state officials to delay and defeat any public accounting for what had occurred at Attica, a class-action civil suit on behalf of the Brothers in D-Yard was tried in federal court in Buffalo in 1991. For the first time the full extent of the killing, brutality and denial of medical care inflicted on the men of Attica was publicly exposed.
The jury found that the rights of the class members had been violated by the brutality they experienced when and after the prison was retaken; however, the jury split over whether any of the four officials on trial were responsible. They assigned blame for the beatings in the yard and the tunnel, and for other tortures that occurred that day, to just one assistant warden, Karl Pfeil, the only one of the four defendants who was part of the planning and then personally oversaw the brutality.
The jury hung on responsibility for the torture as to the other three defendants: Commissioner Oswald, who had died; Major Monahan of the State Police, commander of the assault force, also deceased; and Warden Mancusi. At a subsequent damages trial in 1997, a different jury returned an award of $4 million for Big Black, and another verdict awarded $75,000 to David Brosig, who was selected as an example of a prisoner who suffered the average level of harm common to all of the class members not singled out for special vengeance after the assault.
Refusing to resolve the case, the state appealed the liability verdict. The Second Circuit Court of Appeals, still beholden to the legacy of Rockefeller—and obviously determined to protect the State of New York from liability for the tens of millions of dollars the two damage verdicts indicated the Brothers were entitled to—refused to recognize the legal validity of the class of prisoners and set aside the jury verdicts.
Faced with the impossibility of returning to square one with 1,200-odd individual cases as ordered by the court, and with the likelihood of further delay, uncertainty and clearly impossible expense, the Brothers still involved in 1999 agreed to an inadequate settlement totaling $12 million, including attorneys fees, for a quarter-century of legal work. This meant that most of the survivors received only a few thousand dollars, which in light of the two damage awards was a wretched pittance for what they went through. [Ed. note: In 2005 the State of New York agreed to pay a $12 million settlement to surviving prison employees and relatives of the hostages who were killed].
* * *
For a time, the horrific events at Attica, followed by several other less-publicized prison uprisings and riots elsewhere, fueled nationwide efforts for prison reform. Programs for prisoners and ex-prisoners were instituted throughout the country and for the first time people began to be sympathetic to the rights of prisoners, and to realize the importance of realistic efforts at rehabilitation. Prisoners’ rights legal programs were established in almost every state and many prison reform and watchdog groups sprung up. It was a period of political militancy and unrest throughout the country, and there were the beginnings of awareness in many sectors of the population that prisoners were subject to widespread mistreatment and abuse by their captors. Even the federal courts—often as a result of prisoners acting as their own lawyers—began to recognize for the first time that prisoners had constitutional rights, including the right to due process prior to discipline and parole denials, the First Amendment right to literature and mail, and freedom from cruel and unusual punishment in the form of deplorable prison conditions.
But it didn’t last. Before long the emphasis on prisoners’ rights, and prison reform, began to evaporate in the heat of the nascent “war on drugs”—especially in New York, with the infamous Rockefeller Drug Laws—and with “tough on crime” politics generally. In the mid-1970s a series of decisions by the U.S. Supreme Court gutted the protections earlier envisioned as guarantees of prisoners’ welfare and dignity. Instead the Court sanctioned supposed due process rules, which prison officials could satisfy by simply creating bureaucratic procedures and paper records in dealing with complaints and disciplinary actions that rarely if ever were decided in a prisoner’s favor, and never when it was a prisoner’s word against a guard’s.
Also, rather than implement programs of rehabilitation, prisoncrats throughout the country began to develop special solitary confinement units—control units—with sensory deprivation cells, where they isolated prisoners they identified as being activists and politically-aware. Public support for reform and rehabilitation waned, and Attica for many was just past history.
Then, as time went on, mandatory sentencing, increased penalties for drug crimes, gang proscriptions and an epidemic of “three-strike” laws and other draconian sentencing “enhancements” resulted in a virtual incarceration explosion in America. Hundreds of new prisons were built all over the country, replete with every phenomenally complex, expensive, high-tech electronic security and surveillance system and device that anyone could invent, especially if it could be sold to the government in large quantities. From 1972 to the present the total U.S. prison population increased from about 400,000 to more than 2.3 million, as the prison industrial complex blossomed into big business with big corporate profits.
During that time the upswing in popular consciousness flowing from the disgrace and vanquishing of Nixon and the end of the Vietnam war—as well as the response to earlier events like the shootings at Kent State and Jackson State, along with Attica—soon leveled off in Gerald Ford’s “stagflation” and the weirdness of the Carter presidency, which was blown up by the hostage crisis in Iran. Then came an election in which Carter—besides being snookered by Reagan agents in a secret deal with the Iranians to hold the hostages until after the election, to deny him the campaign triumph of bringing them home—was simply overmatched.
More to the point, Reagan and his ad agency handlers ran an overtly racist campaign—brazenly kicking it off in Philadelphia, Mississippi, the site of the notorious slaughter of three young civil rights workers in 1964, and denouncing “welfare queens” and supposed freeloaders—that appealed shamelessly to the prejudice of white working-class people in cities filled with “Reagan Democrats.” Reagan trumpeted the politics of anti-communism and crime while building an atmosphere of fear and selfishness in which those politics would thrive, and they did. The backlash had arrived.
“We’re going to move this country so far to the right you won’t recognize it,” crowed Congressman-turned-Reagan Budget Director David Stockman, as he began to engineer the first of the preposterous tax cuts for big corporations and the rich that ultimately led to the country’s present evident bankruptcy. From there on, governance was more and more a matter of conscious stage management. The perfect actor was in the White House, and he set a tone of truculence and unyielding moralistic harshness, with unmistakable racial undertones, that was perfectly adapted to the emerging use of mass incarceration.
As the American population came to identify more and more as the “Me Generation,” and activist elements—beleaguered by FBI “counterintelligence” (COINTELPRO) and kindred programs of repression all over the country—largely drifted into the by-ways of identity politics, administrators of growing bureaucratic empires in state prison departments systematically set aside what federal judge Marvin Frankel once identified as an “elementary” understanding: that “people are sent to prison as punishment, not for punishment.”
Finally, the larger trend was sealed with the ghastly, successful, racist exploitation of the Willie Horton story in the 1988 presidential campaigns of Michael Dukakis and George Bush the elder (first former head of the CIA to become president), and to an important degree in just about every campaign for high office thereafter. The “lock-em-up and forget about ‘em” mentality became an article of faith across the political spectrum, and has flourished.4
Rehabilitation, education and training programs wilted everywhere, with the supposedly excessive cost—in the growing “big government is the problem” atmosphere —always being the cover story. In reality, prisons old and new were filling up with drug offenders and alleged members of “criminal street gangs,” who were growing up on streets where the would-be revolution of the 60s and 70s was now played out, and a flood of illicit drugs played in—apparently much of it supplied by the CIA and associated instrumentalities of capitalist culture.
The politics that had been rife in the prisons at the time of Attica gave way to internal red-blue rivalries among both Latinos and Blacks, and inter-racial conflicts, often systematically promoted and manipulated by jailors who were well aware that “if they’re fighting each other, they’re not fighting us.” With such an approach, the prison system became the focal point for a much-heightened level of social control, especially of Black and Brown men, who were increasingly crowded out of a shrinking labor market as entire industries continued to be dismantled, exported and made obsolete.
Outside, anti-drug propaganda and legislative scourgings of drug and gang defendants suffused the public sphere. The Supreme Court did its part with one anti-prisoner ruling after another—decisions where the iron law that power corrupts and absolute power corrupts absolutely was studiously ignored. The Court granted jailors and wardens more and more arbitrary power and discretion over the daily lives of convicts, shrinking further and further the process of any accountability for, or recourse from, the many perverse ways they misused that power. Lower courts were instructed to defer to prison officials whenever possible, while barely showing even the slightest awareness of the likelihood that the power they conferred would be abused. In the midst of this transition, the Control Unit paradigm continued to gain strength.
Possibly the first control unit as such was established in what was then the federal maximum security institution—the notion of “maxi-maxi,” now morphed to “supermax,” was just coming into play—at Marion in downstate Illinois, also a substantially “up South” region. Prisons had always had solitary confinement units for punishing rule violators, but the idea here was different; namely, that certain prisoners had to be permanently separated from the general population due to their supposed influence on other prisoners. At Attica before the rebellion, prisoners overtly involved in prison and political issues or organizing were just beginning to be recognized, and grouped together and dealt with together.
It was just such a grouping, from a certain tier, “5th Company,” including Sam Melville, L.D. Barkley and several others killed on Sept. 13, that started up with the guards in the tunnel when they found the door to the yard locked, which brought on the Attica riot. At Marion, authorities decided that certain prisoners associated with protest on the inside or political causes on the outside, or both—men respected by other prisoners—as well as some whose resistance was more directly acted out, should be subjected to programs of “behavior modification” in the form of prolonged isolation with basically uncertain terms for release, whereby they could be conditioned to submission. Which is to say, broken.
The idea caught on. Predictably the courts accepted this practice, determining that as long as a prisoner was let out-of-doors for an hour or so each day, or maybe every other day, he could be kept locked up alone all the rest of the time—or at least until he was deemed by officials to have satisfied some unknown standard or prescription for correct conduct, or had served a peremptory minimum term, perhaps fixed by the government shrinks who now began to appear in profusion to certify the supposed need for this new segregation regimen. All the officials had to say was that confinement in such Security Housing Units (SHUs) was not intended as punishment, and they quickly learned how to pronounce whatever formulaic justifications and rationales the courts said they needed to hear.
Soon isolation units were being established in prisons everywhere, and it was not long before they were being specially constructed in new prisons. An early refinement was construction of isolation cells that had their own adjacent outdoor space, to eliminate the need to move prisoners outside their cells. These outdoor “dog pens” were similarly cramped (the usual cell size was 6x8 feet, while the yards were perhaps 6x10 feet) with nothing but high, blank walls and a patch of sky, which the sun or moon might or might not ever pass over. The front doors of the cells were solid, maybe with a pattern of small holes for ventilation, with a meal slot, only openable from the outside, where food is shoved in on a tray and where prisoners have to back up and stick their hands out behind them through the opening to be cuffed and chained before they can come out for any reason.
Many cells were painted entirely white, and some are reputed to have rounded angles at the tops of the walls, so the eyes are deprived of even the tiny stimulus of a ceiling line. A light is usually kept on at all times. In the SHU at Pelican Bay State Prison in California—an isolation unit inside an isolation prison—prisoners are permitted an “appliance,” a small-screen TV which also picks up (and is sometimes rigged by staff to not pick up) one or more local or regional radio stations. Prisoners also have a small space for property, including the boxes of their transcripts and legal materials (if they have not been confiscated).
Such units came to be all the rage in U.S. “penology,” especially as gangs and supposed gangs began to proliferate during the 1980s, and before long entire prisons were being designed and built for long-term solitary confinement, typically located as far as possible from population centers so as to discourage visitation and promote the feeling and pressure of isolation. The federal government built a supermax facility in the Colorado mountains, at Florence; Illinois put theirs at Tamms, all the way at the other end of the state from Chicago, and California built one as far away from Los Angeles as possible – about 780 miles north, at Pelican Bay. Again, many of the locations chosen were distinctively “up South.”
And if you build it you have to keep it full, to justify the trouble and expense. Thus you must have a steady supply of dangerous characters you can classify as needing segregation from others in long-term lockdown, with “the worst of the worst” being the ominous description usually used. As the prison population swelled in the 80s and 90s, and red vs. blue gang rivalries developed on the streets and inside, prison officials relied on supposed “validation” of gang membership as the criterion for assignment to SHUs.
And like other political figures, they used propaganda about the supposed menace of the gangs, and the difficulties and dangers of dealing with them, to encourage and maintain public indifference to what prisoners were going through on the inside.
SHU isolation obviously falls short of the vile regimen of dogs, nakedness, hoods and other tactics ordained by Bush, Cheney and Rumsfeld, and worked up by the Army and the CIA at Abu Ghraib, Bagram and other places used to hold prisoners taken in the U.S. wars in Iraq and Afghanistan. Nevertheless, particularly in light of the manifest intention to degrade and break those subjected to isolation, and the institutional as well as individual disposition to de-humanize prisoners, SHU segregation absolutely qualifies as torture under both U.S. and international law.
Particularly with respect to alleged gang members who are locked down, there is the added feature that the regimen of enforced isolation and sensory deprivation is explicitly designed to extract information in the form of so-called “debriefing” of information about the gang and other gang members, which brings that practice even more solidly within the legal definition of torture.5 Indeed, in California and other places, debriefing of prisoners considered by authorities to be gang members and confined in SHUs on that basis has become a burning issue within the larger issue of long-term confinement generally. Debriefing—in which prison “intelligence” officers insist that a prisoner’s betrayal of the gang and gang members be so abject and complete that “they will never accept you back”—marks a prisoner for violent retribution for life, and also greatly endangers their family on the outside.
Most prisoners understand that regardless of the promises that are made, sooner or later they will likely be left unprotected or again placed in solitary. Debriefing is thus not a realistic option—as the authorities well know, much as they also know that after years in the SHU there’s nothing much a prisoner can tell them about gang activities that would be of any use—yet still that is the impossible hoop they hold up for these men to jump through. Some prisoners have been confined the whole time the tormentarium has been open, 20 years and even longer. No wonder there were no scruples at Abu Ghraib.
* * *
Most recently, first in Georgia, then briefly in Ohio and now in California just this summer, prisoners held in long-term isolation units were driven to the point of mass hunger strikes. Prisoners in the SHU at Pelican Bay were able to organize despite their concerted isolation. The Pelican Bay hunger strike drew unified support across racial lines on the inside, a remarkable development and accomplishment which apparently helped to spread the message to other prisons up and down the state.
The strike was planned weeks in advance and for once there was strong, effective support on the outside, resulting in broad coverage in the mainstream press, which is usually oblivious to prison conditions.6 The brothers who initiated the hunger strike said they were hoping that maybe three or four hundred prisoners at Pelican Bay would participate; after about two weeks more than six thousand prisoners, in at least 12 institutions statewide, had refused meals in support of the strike and its core demands, which included an end to the SHU debriefing requirement.7
After three weeks an assistant commissioner from Sacramento sat down at a table with prisoner representatives, and allowed them to hold a conference call with a team of outside negotiators that had formed to help and intercede on their behalf. Some token concessions were made regarding living conditions, along with a promise that the need for and possibility of changes in the SHU system would be discussed within the state administration and further talks would be held. Believing they had made real progress, especially in gaining public attention and getting a promised hearing on SHU conditions and policies in the state legislature, the prisoners agreed to accept those assurances in good faith but without illusions, to see what would happen.
The four hunger strike leaders sent out the following message:
We’ll see soon enough where the CDCR is really coming from. More important is the fact that while the Strike is over, the resistance and struggle to end our subjection to human rights violations and torture in the SHU is just beginning!! We’ve drawn the line on this, and should the CDCR fail to carry out meaningful changes in a timely fashion, we will initiate a class action suit and additional types of peaceful protest—we will not stop until the CDCR ends illegal policies and practices in the SHU.
We’re counting on all of our outside supporters to continue to collectively support us, and carry on shining a light on our resistance in here. This is the time for change in these prisons, and the movement to do so is growing across the land. Without the people’s support outside, we can not be successful!! All support, no matter the size and content, comes together as a powerful force; we’ve already brought more mainstream exposure about these SHUs than ever before, and our time for real change to this system is now!!! [emphasis added]
It is true that, in keeping with the increasing dog-eat-dog reality of American life in general, street gangs in many places and drug dealers everywhere have disrupted society and often prey on their own communities—which is endemic in the predictable chaos arising from the country’s failure to learn from its experience that prohibition doesn’t work. But the fact is that a substantial majority of prisoners are jailed for non-violent offenses, and are themselves victims of a racist system that denies them opportunities for education and any real chance of obtaining decent jobs.
Moreover, most prisoners will be released at some time, despite the draconian sentences heedlessly inflicted on so many of them. If they don’t receive education and training in prison, and instead are maltreated, disrespected and left hopelessly idle and bored, while there are no jobs available upon their release, the cycle of crime and incarceration will obviously continue – as it has to enormous societal cost in all ways.
Currently almost two-thirds of prisoners who get out commit another crime within three years of release. In California, huge numbers are returned to prison for the most minor, non-criminal infractions of parole conditions as a matter of policy, decreed by the state’s punishment overlords. Only now, as a result of the tax-debt-budget crisis fomented in the political sphere—and in California due to the recent decision by the U.S. Supreme Court to uphold a lower three-judge court order, after many years of litigation, directing the state to move or release some 40,000 prisoners to relieve overcrowding—is there renewed impetus to look seriously at who is sent to prison, why and on what terms, and what happens to them upon their release.
Despite the difficult climate, prisoners continue to organize and protest inside; and finally, hopefully, as the depredations of the wealthy classes on society as a whole awaken the conscience of more and more people, especially youth, there has been a rejuvenation of support groups for prisoners on the outside. The recent protests embodied in the California hunger strike and its public support, following earlier work inside and outside challenging the gouging of prisoners and their families by phone companies in cahoots with “corrections” officials, are examples that show the spirit of resistance is still alive.
It should be clear, however, that a prison reform movement based on the fiscal needs of cash-strapped governments will not bring about real change. Unless we begin to deconstruct the whole system that denies real opportunity to such large and growing numbers of people, and transform the class-based and racist enforcement structures of the criminal justice system, prisons will continue to be used as warehouses and torment centers for those who are expendable in the larger political economy – especially those who act out their resentment or resistance.
Rather, we need a movement that demands an end to discrimination and exploitation, and to draconian prison sentences, conditions and treatment, and which fights for equal opportunity, education and decent jobs. Prisons should be reserved for only the truly dangerous, always with the goal of rehabilitation and release, and with adequate resources provided to achieve those objectives in positive ways.
We would do well to hearken back to the revolutionary spirit that motivated the Attica rebellion – a demand for justice led by those who are oppressed. But we must remember as well the message from the brothers at Pelican Bay: “Without the people’s support outside, we cannot be successful!” As Big Black said, “Wake up, because nothing comes to a sleeper but a dream!”
Dennis Cunningham, Michael Deutsch and Elizabeth Fink, along with Joseph Heath, were staff attorneys at Attica Brothers Legal Defense in Buffalo throughout the criminal trial phase, which ended in February 1976. They continued as lawyers for the Attica Brothers in a civil suit that was filed in 1974 and finally ended in 2001. They wrote this article exclusively for Prison Legal News.
1 Michael Smith remains a stalwart witness for and friend and supporter of the surviving Attica Brothers, four decades afterwards, and will be present in New York City to join in the 40th anniversary commemorations.
2 The famous pathologist Michael Baden reviewed the autopsy reports and testified at trial in 1991 that Sam Melville and L.D. Barkley, both wounded in the lungs, both might well have been saved if they had received timely medical attention when the shooting stopped.
3 More people were slaughtered by the U.S. Army at (the first) Wounded Knee, for example, in 1890, and at Sand Creek, Idaho in 1875; and as many or more probably also died in the race riots at Tulsa in 1921.
4 In the 90s, Bill Clinton, the hustler president, aiming as he did so often to beat the reactionaries at their own game, promoted and then signed the so-called Anti-terrorism and Effective Death Penalty Act (AEDPA), which basically shut down federal relief from wrongful convictions of state prisoners; he also signed into law the Prison Litigation Reform Act, in reality a litigation suppression act which put huge, malicious and legally perverse impediments on civil rights lawsuits filed by prisoners and lawyers trying to represent them.
5 The U.N. Convention Against Torture states: Part I, Article 1, 1. For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. * * * *
Article 2, 1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
U.S. law, Title 18, Sec. 2340 of the U.S. Code, is more restrictive, requiring infliction or threat of pain, or forced drugging or some similar extension beyond simply “any act” by which severe mental pain is inflicted.
6 Indeed the mighty New York Times covered the hunger strike, belatedly as to Pelican Bay but in terms that were admirably straight from the shoulder, considering the demand that long-term isolation be ended. See: “Cruel Isolation,” New York Times editorial, August 1, 2011 (www.nytimes.com/2011/08/02/opinion/cruel-isolation-of-prisoners.html?_r=...). In contrast, the supposedly liberal San Francisco Chronicle was happy to banner-headline the propaganda smear of the authorities, who claimed the always-handy-to-take-the-blame gangs were enforcing the strike. The paper was then silent on the whole affair when a peaceful compromise was reached, obligating CDCR to consider real changes and negotiate further to end the strike. That’s not news, in the Chronicle’s commanding view, meaning it was not something negative about the supposed “worst of the worst”—whom California prison officials hold in such deep torment that they began to starve themselves in protest. See: “Gang ties alleged in hunger strike,” San Francisco Chronicle, Bay Area section, July 14, 2011.
7 The five core demands were: 1) End group punishment and administrative abuse; 2) Abolish the debriefing policy and modify active/inactive gang status criteria; 3) Comply with the U.S. Commission on Safety and Abuse in America’s Prisons 2006 recommendations regarding an end to long-term solitary confinement; 4) Provide adequate and nutritional food; and 5) Expand and provide constructive programming and privileges for prisoners held in indefinite SHU status. See: https://prisonerhungerstrikesolidarity.wordpress.com/the-prisoners-deman....